PGMA’s Statement: No Legal Implication

GMA has issued a statement on the GloriaGate tapes admitting that she was the person whose conversation with Comelec Commissioner Garcillano was illegally wiretapped.  I will leave our countless politicians and columnists (and occasional bloggers) to the task of unraveling the political impact of her admission.  That’s far too complicated for me and I would think that this time, her move is deliberate and mindful of the political risks involved. 

I’m more interested in the more boring aspects of the legal implications of her admission which, I’m surprised to find, are none.

First, she did not categorically admit that she talked to Comelec Commissioner Garcillano.  Look at her statement more closely:

I was anxious to protect my votes and during that time had conversations with many people, including a Comelec official.

Of course, one could argue that given the surrounding circumstances, she could only have referred to Commr. Garcillano.  Well, lawyers have a funny way of twisting things around and I wouldn’t be surprised if the meaning of her statement would be subject to further “refinements.” Let’s not forget that in this affair, it’s happened before.  Right, Secretary Bunye?

Second, she disclaims any legal wrongdoing.  She says:

My intent was not to influence the outcome of the election, and it did not. As I mentioned, the election had already been decided and the votes counted.

That’s a very fine point which cannot be disputed.  When the recordings were made, the votes had already been counted by the teachers manning the voting precincts and the election returns were already prepared.  But what she omits is the relevant fact that the canvassing had not yet been completed.  And it is the Certificates of Canvass that Congress tabulates in determining the winner of the Presidential race.  So, in reality, it is both the votes cast and the certificates of canvass that determine who won the election.  She makes no admission that she tried to influence the canvassing.

Third,  the admission now provides Justice Secretary Gonzalez with the necessary “complaining party” to start pursuing Anti-Wiretapping Law violations.  Prior to the admission, noone had stepped forward as the aggrieved party.  Remember that you need the consent of both parties to the conversation in order to make the tape legal.  Her admission does not equate to consent. So, even if Commr. Garcillano steps out and gives his consent to the tapes, it’s still inadmissible absent the President’s consent.  Of course, the decision to pursue RA 4200 cases (as threatened) will fall on the President and it’s unclear whether she will do so.

Lastly and most importantly,  her admission does not make the tapes admissible in any case against her.   RA 4200 still applies and the tapes can be excluded from any proceeding (including an impeachment proceeding). 

My conclusion is by no means certain and legal commentators will have different opinions.  Some will say, for example, that her admission is independent of the tape itself and can be used against her.  But I argue that her admission is useless without the tapes because it makes reference to the tapes (which are inadmissible).   Because she’s only making references to the inadmissible tapes, then the admission, for legal purposes, is incomprehensible and therefore useless in a court of law (or an impeachment court, too).

Remember that she says she talked to a Comelec Official (whom she does not name).  If we take that to be an admission of the tapes, then we would need to present the tapes in evidence to know exactly what she admitted to.  But the court won’t admit the tape simply because it’s illegal to do so.  So, what are you left with?  The President’s statement which, standing alone, can’t be used to prosecute her.

Legally, therefore she’s admitted to nothing with respect to the tapes.  Besides, as I mention above, she does not even categorically admit that her conversations with a Comelec Official were the ones captured on the  wiretaps.  So, as a measure of safety I presume, she leaves enough legal doubt as to the value of her statement.  If people try to link it to the tapes, she leaves herself with enough elbow room to say, “You misunderstood me.  I wasn’t referring to the tapes.  I merely admitted that I talked to many people including one Comelec Official and truth be told, it was Chairman Abalos.”  She can then spend her time blaming the media and everyone else for the mistake.

I think it’s a brilliant move — legally– because it makes her no worse off than she already is.  So, having protected herself from the law, she can then address the political implications of the tapes.